SPECIALTY OCCUPATION (H-1B)

The primary purpose of the H-1B visa is to admit persons to be employed in “specialty occupation” positions to perform professional level services in the United States.

Not only the prospective employee but both the proffered position and prospective employee should qualify for the H-1B visa. For a proffered position to qualify for an H-1B visa, it must be a “specialty occupation” position. Specialty occupation is an occupation that requires:

1.  A theoretical and practical application of a body of highly specialized knowledge; and
2.  Attainmen of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

The H-1B regulations further require that a position also meet one of the following criteria, in order to qualify as a specialty occupation:

1.  A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
2.  The degree requirement is common to the industry in parallel positions among similar organizations, or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
3. The employer normally requires a degree or its equivalent for the position; or
4.  The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

For a prospective employee to qualify for the proffered H-1B position, regulations specify that foreign national should have either one of the following:

1. Full state licensure to practice in the occupation (if required);
2.  Completion of the degree required for the occupation; or
3.  Progressively responsible work experience in the specialty equivalent to the completion of such degree. Thus, a general degree absent specialized experience may be insufficient because there must be a showing of a degree in a specialized field.

ANNUAL CAP

The current annual cap on the H-1B category is 65,000. However, all H-1B nonimmigrant visas are not subject to this annual cap. Up to 6,800 visas are set aside from the cap of 65,000 during each fiscal year for the H-1B1 program designed specifically for the nationals of Chile and Singapore. Unused numbers in the H-1B1 pool are made available for H-1B use for the next fiscal year. Thus, in effect, only 58,200 H-1B visas are granted each year except the 20,000 additional H-1B visas which are reserved for individuals who have received master’s degree or higher from a U.S. college or university.

DURATION

A person may hold H-1B status for a maximum of six years, and it may be issued in increments of up to three years by the USCIS. An employee may receive extensions of H-1B status beyond six years in certain circumstances, if in the process of applying for employment-based permanent residence (commonly called “green card”).

CAP-EXEMPT H-1B VISA

There are certain categories of cap-exempt H-1B visas. One such category is for foreign nationals having an employment offer from an institution of higher education (or related or affiliated nonprofit entities), or from a nonprofit/government research organization.

To be classified as cap-exempt, it not mandatory that prospective H-1B employee should be employed by the institution of higher education (or related or affiliated nonprofit entities), or nonprofit/governmental research organization. Prospective H-1B employee, employed by any employer, who will perform the majority of his/her work at the qualifying institutions mentioned could qualify for the cap-exempt H-1B visa provided the work performed should ‘predominantly further’ the normal, primary, or essential purpose of the qualifying institution.